War Powers, the Constitution and Bipartisanship

ast week, President Barack Obama did something rare in modern America: He actually sought congressional authorization to wage war. In draft legislation, the president proposed “limited use” of the U.S. military against the Islamic State of Iraq and the Levant for a period of no more than three years. The resolution even made the effort to emphasize its consistency with the War Powers Resolution of 1973.

But the president was not just looking back to 1973. He was looking back to 2014. In January of last year, Sens. Tim Kaine (D-Va.) and John McCain (R-Ariz.) proposed a War Powers Consultation Act, which significantly updated the War Powers Resolution, building on recommendations of the Miller Center’s National War Powers Commission in 2008.

In 2007, as the wars in Iraq and Afghanistan continued to cast a long shadow over the country, two of the nation’s most respected leaders in foreign affairs, former Secretaries of State James Baker and Warren Christopher, co-chaired the War Powers Commission to examine the respective powers of the president and Congress over matters of war.

Following 14 months of deliberations, which included seven full-day hearings with over 40 of the nation’s leading scholars and practitioners, the commission released its unanimous report in July 2008. The report called on Congress to repeal the 1973 War Powers Resolution and replace it with the War Powers Consultation Act, which:

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Provides that the president shall consult with Congress before deploying U.S. troops into “significant armed conflict” — i.e., combat operations lasting, or expected to last, more than a week.

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Defines the types of hostilities that would or would not be considered “significant armed conflicts.”

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Creates a new Joint Congressional Consultation Committee, which includes leaders of both houses as well as the chairman and ranking members of key committees.

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Establishes a permanent bipartisan staff with access to the national security and intelligence information necessary to conduct its work.

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Calls on Congress to vote up or down on significant armed conflicts within 30 days.

The subsequent McCain-Kaine Act — and the commission report on which it was based — was unique in several ways. First, it set out to define what constituted military action, thus clarifying when the president should consult with Congress. It also added two roles for Congress: formation of a permanent joint Consultation Committee and the requirement that all members of Congress vote on military action lasting more than seven days. These represented significant — and critical— changes to the 1973 resolution.

The bipartisan origins of the commission — and of the McCain-Kaine Act — have been a rare exception to the political polarization that has gripped our nation’s politics. In his remarks introducing the act last year, McCain said, “We wish to pick up where the National War Powers Commission left off six years ago.” Kaine also credited the bipartisan commission’s recommendations — spearheaded by former Virginia Gov. Gerald Baliles and guided by a team of scholars that included John Jeffries, Taylor Reveley III and Doris Kearns Goodwin.

The senators’ collaboration, by itself, has been critical. Since last summer, Kaine in particular has been pushing hard for the president to seek congressional authorization for military action against the Islamic State. While the president’s proposed legislation does not implement all of the ideas contained within the act, it is clear that the efforts of Kaine and McCain have had an impact.

Reacting to the president’s request for war authorization, Kaine praised him for “taking this important step” and for including “many provisions I support.” However, he continued: “I am concerned about the breadth and vagueness of the U.S. ground troop language and will seek to clarify it.”

Our constitutional system, and the creation of the presidency itself, was an attempt to give democratic governments the ability to survive in the rough and tumble of world politics without undermining their popular legitimacy. They did not anticipate the need for the presidency to act short of a full declaration of war. The McCain-Kaine War Powers Consultation Act (and the commission report on which it was based) took a positive step forward in fulfilling the spirit of the Constitution. Obama has met that challenge in a way that deserves public applause.